Heller, 2nd Amendment, Automatic Weapons etc.
- Thread starter Tennessee Gentleman
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Tennessee Gentleman
New member
None. Your premise however was that the laws inferior to the COTUS caused these weapons to not be common. This is incorrect. The 1934 NFA was upheld by Miller and is not therefore "inferior" to the COTUS.
I disagree. Once those laws have been challenged and upheld they ARE the law of the land. Your dichotomy of inferiority is not true. The amendments of the BOR are interpreted by the SCOTUS. If they say it means X then it means X not what you or I think it means.
I am not answering because your question makes no sense. I have told you what I believe are the criteria that the SCOTUS use to interpret laws and dertemine whether they are constituional or not. I have never said the 2A afford us no protection against laws. I think it doesn't protect things YOU would LIKE for it to protect like grenade launchers for use by civilians.
That is constitutional law as I understand it.
Tennessee Gentleman
New member
By political means. Nevertheless, I think the unorganized militia won't do that but the question on the board is whether arms in common use is a reasonable limitation on 2A grounds. I think it is and will be when we get the decision. That is until the phaser comes out then we will not need machine guns
At this time, the Second Amendment effectively only affords protection against federal laws that would infringe upon the RKBA in two federal circuits. Heller could, and probably will, change that with a ruling in favor of an individual right.
At this time, the Second Amendment effectively affords little or no protection against state laws that would infringe upon the RKBA. Heller could change that, but prospects for incorporating 2A against the states is by no means assured.
Lawyer Daggit
New member
Tennessee Gentleman, whilst I respect your service, and your comments about irregular service, and I agree with you that most irregulars have failed.
A few have not. The Maori in NZ and the Afghan beat the British Army (it remains to be seen if they will do it again).
Irregulars can certainly wear an army down- the IRA in Britain and N Ireland, current experiences in Iraq.
As irregular war goes on, skills are developed and these can significantly tie down the military and cause every politicians nightmare- body bags. Victory is achieved through body bags, cost and attrition- not outright victory.
A few have not. The Maori in NZ and the Afghan beat the British Army (it remains to be seen if they will do it again).
Irregulars can certainly wear an army down- the IRA in Britain and N Ireland, current experiences in Iraq.
As irregular war goes on, skills are developed and these can significantly tie down the military and cause every politicians nightmare- body bags. Victory is achieved through body bags, cost and attrition- not outright victory.
Cant be explained any better than that, IMHO.
But whats stopping anyone from just ignoring the vote, if there is no fear they can PHYSICALLY be taken from power by force? A perfect example in right here in Eugene where I live. For the last 3 straight years, we residents have voted OVERWHELMINGLY 'no' to a county income tax, city income tax,and additional gas tax, and yet all were passed into law by the government anyways.Seems like the vote didnt do much, as all they had to do was just ignore it. Without fear or physical removeal, whats going to stop them from just ignoring our vote to not re-elect those who ignored our votes? Nothing. They have proven they will do what they want reagrdless.Yes, eventually enough stink was made, new votes were had, and the taxes all got dropped, but what if they all just decided not to care about re-election? we'd still have the tax inspite of our vote.The only thing keeping ANY of the presidents, or anyone else for that matter from becoming a dictator in the U.S. is the fact they know those with guns, be it the military or the people, it doesnt matter, would use force to stop them (and their personal moral fiber, but I wouldnt bet my life and liberty on everyone in the country being the same way, for all eternity).
And before someone says "see, like you said, the MILITARY would stop them!", well, what if the majority of the military decided not to? What if enough of them decided they wanted to be part of the new elite with all the power and money of the dictatorship? Then who would stop them? Yes, I know the scenario is mind numbingly unlikely in the U.S., but that doesnt make it impossible.History has proven time after time there are people willing to do anything to be sole ruler, and that lots of times the countries military will join them, instead of oppose them.THAT'S what the unorganized millitia, 2nd Amendment, and armed poulace are for.
Also, having been in the active duty military myself, I certainly wouldnt put so much stock in the disipline, organization, obediance, control, etc of the active military.I've seen PLENTY of events and people, as I'm sure you have, that are/were more than happy to do as they pleased inspite of all that.Just like the general population/unorganized millita, the only thing keeping them in line is their own individual morals, and the fear of death and/or imprisonment.Those in the military are no different than the rest of the population, since they arent genetically engineered to be soldiers, they are drwn from the general population.
I met PLENTY of scumbag sailors that ignored the rules all the time.Again the only thing keeping some of them in line was fear of punishment, or whatever morals they had, and I can give examples of some who even that didnt stop or disuade in the least.I also know PLENTY who had NO combat/weapons training AT ALL, as I was one of them.I never fired a single round in my 5 years of active duty, including boot camp, and received NO self defense or combat training of ANY sort (knew plenty of Marines who only had whatever training they get in boot camp, and whatever yearly or whater "quals" are rquired thereafter, if ther is any, so I wouldnt have exactly called them highly trained combat troops either), but some of these same "untrained" people, myself included, sure owned plenty of weapons, could shoot very well, and had self defence/combat training that they paid for on thier own, so I certainly wouldnt say that just becasue someone isnt/wasnt in the military, and traind by the military, and using the same weapons as the military, wouldnt be as good if not better than plenty of people in the military.
Just saying, theres plenty of evindence every day, all over the world that there are LOTS of people for whom morals just arent/wouldnt be enough to keep them from doing as they please, but luckily, for the vast majority of us, it is enough, and the fear of puishment (including death and/or imprisonment) just adds to it to keep the rest in line for the most part.
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There almost isn't such a thing as a vote in the PRK for state elections. The districts are gerrymandered to the point of having an over 90% reelection rate for incumbants who are able to draw their own district lines. Hence they act totally without fear and we get what we see now.
The position that irregulars lose militarily is ridiculous. You are basically saying that "we won all the battles, but lost the war."
You still lost the war. Does this look like a win?
How about this? Another example of a militia who lost a battle, but won a conflict.
Of course a militia cannot beat an army in a stand up fight. But if you are truly a student of military history, you know that you never attack an enemy where he is strong. The US military is strongest in conventional battle, but weak when it comes to fourth generation warfare. The US military is stuck in the past, much like the Japanese Navy in 1942, the French Army in 1940, or the British Army in 1781.
You still lost the war. Does this look like a win?
How about this? Another example of a militia who lost a battle, but won a conflict.
Of course a militia cannot beat an army in a stand up fight. But if you are truly a student of military history, you know that you never attack an enemy where he is strong. The US military is strongest in conventional battle, but weak when it comes to fourth generation warfare. The US military is stuck in the past, much like the Japanese Navy in 1942, the French Army in 1940, or the British Army in 1781.
GC70,
That falls within the range of likely results. To be clear, I did not believe that it was your position that 2d Am affords no protection against laws that would infringe upon the right to keep or bear arms. I also think it reasonably probable that Gura's formulation as you incorporated it into your question will find its way into some portion of the opinion.
TG,
With due respect, that is part of the problem with your conclusion. If that were a proper way to resolve constitutional issues, we wouldn’t need an amendment process; we would simply declare new public policies and ignore the portions of the COTUS that are no longer consistent with that policy.
You have not correctly identified or refuted a premise.
Mere acts of congress are inferior to the COTUS and its amendments. That is why acts of congress can be found unconstitutional, and therefore invalid, while no portion of the COTUS is ever invalidated as a matter of constitutional theory. That a law withstands constitutional challenge does not render it more a part of the COTUS against which the constitutionality of other laws are measured.
As to the bolded language above, you seem to be under the impression that the decision in Miller limited 2dAm protections to items commonly held by civilians. I urge to read that decision, which contains no such standard.
At no point was I referring to the NFA. Instead I was asking you to explain the logic of your own position. Since you believe that the language of the COTUS and BOR are subject to disregard if they are deemed unreasonable or contrary to public policy, you necessarily have concluded that the 2d Am serves no purpose in constitutional analysis; it is subject to repeal by public policy as expressed in statutue, to which you do not consider the COTUS superior. I’ve provided you several opportunities to deny the rationale on which your position relies, but you’ve conspicuously avoided that denial.
I have not argued for use of grenade launchers.
Obviously if your theory of the constitution is that it is not superior to any other law, and can be effectively repealed by public policy statements or contrary reason, you do completely remove any protection the 2d Am could afford against those infringements. I hope that helps make sense of it for you.
I do not share your view of the COTUS. A coherent constitutional theory requires that all laws enacted by the congress it created, and enforced by the executive it created, be consistent with the provisions of the COTUS itself. All subsequent acts of congress are categorically inferior to the document that creates the congress itself. Otherwise the COTUS would have been mere legislation at best, and wasted paper at worst.
sw_florida
Moderator
The manager of the "well-regulated militia" of the past surely must have tollerated a pistol, if that was what a poor farmer could bring to the lineup. I'm amazed that the Supreme Court is allowing itself to be bullied around with irrelevant nonsens from anti-gun people.
Take the criminals off the street and D.C. will be the town the lefties want. But no. Take the guns off the street and keep the criminals in play. Duh!
Take the criminals off the street and D.C. will be the town the lefties want. But no. Take the guns off the street and keep the criminals in play. Duh!
Tennessee Gentleman
New member
Not repealed, interpreted by the SCOTUS.
I am not sure I can make sense of many of your arguments, they are too cunning for me to understand. Laws and the constitution are inextricably entwined. Laws may not infringe on the rights so enumerated as interpreted by the SCOTUS Once the law has been declared constitutional (like the NFA) it is the law of the land period. So this idea of laws being "inferior" to the COTUS makes no sense at least to me. What I really hear you saying is that YOU have determined what the 2A means and therefore YOUR interpretation is superior to any gun control law. When the NFA was upheld in Miller, and I have read it, the NFA became the law of the land. It is not inferior to the constitution but is in agreement with it with full force and power of the government and the people. At least until it is overruled by the SCOTUS or amended. I really see no further reason to discuss this. Unless you can "dumb it down" a bit more for me you sly devil
Need I remind you that the only reason the NFA was upheld at all was because the person defending himself in the Miller case happened to be dead at the time. Hardly what I would call any mandate for the act's defense.
"You can't stop insane people from doing insane things with insane laws. It's...insane!" -- Penn Jillette
"You can't stop insane people from doing insane things with insane laws. It's...insane!" -- Penn Jillette
No cunning is involved. I am restating some ordinary constitutional principles.
Statute and the COTUS are actually pretty easy to distinguish. The COTUS is a separate document.
If laws are invalidated if contrary to the COTUS, they are inferior to it, and the COTUS superior to them.
Not even close.
You can understand my confusion on this point. It arises from you answer below.
You later suggest that the standard came from Miller, even though there is no such standard in Miller.
It actually became law immediately after it was enacted.
If it weren't inferior to the COTUS, why would its constitutionality be tested against the greater, i.e. superior authority, of the COTUS?
The principle at work here isn't arcane.
It isn't a matter of being sly or cunning. I wanted to know the constitutional rationale for your conclusion. I now believe you may just be trying to make constitutional arguments you don't completely grasp.
No harm done.
I believe that any rational reading of the Second Amendment should afford protection against laws that would infringe the RKBA. However, as a practical matter in the courts, the Second Amendment has effectively been a dead letter for the better part of a century. With any luck, the ruling in Heller will restore, or begin the restoration of, the Second Amendment to its rightful place.
NFA not up held by SCOTUS!
The SCOTUS has *not* upheld the NFA.
The only case to raise the issue (Miller), was remanded to a lower court, and because the individuals involved never pursued the matter. a final conclusion was never reach with regards to the NFA.
I strongly suggest people actually read Miller v US before they claim what SCOTUS actually said or did!
In point of fact. that was what motivated the S.G. to file and ask to be heard in this case because of the fear that NFA and other federal regulation will/could be overturned with a ruling in DC v Heller.
Hopefully. this will keep us on track!
The SCOTUS has *not* upheld the NFA.
The only case to raise the issue (Miller), was remanded to a lower court, and because the individuals involved never pursued the matter. a final conclusion was never reach with regards to the NFA.
I strongly suggest people actually read Miller v US before they claim what SCOTUS actually said or did!
In point of fact. that was what motivated the S.G. to file and ask to be heard in this case because of the fear that NFA and other federal regulation will/could be overturned with a ruling in DC v Heller.
Hopefully. this will keep us on track!
Here is the language from the Miller decision:
The District Court had ruled that the NFA was unconstitutional and the Supreme Court reversed that ruling.
Miller had been killed in the interim, but on remand to the District Court, Miller's co-defendant, Frank Layton, pleaded guilty to the reinstated NFA charge and was sentenced to five years probation on January 8, 1940.
.
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Tennessee Gentleman
New member
I agree that I do not grasp your arguments. I am beginning to think you are merely engaging in sophistry which may be entertaining but not very illluminating.
You are treating the COTUS as a self-explanatory document which all could read and say "Aha! That's what that means". Yet, nowhere in the COTUS will you find a right to privacy, Miranda warnings, a right to an abortion, but still there they are, the law of the land through the decisions of the SCOTUS. The SCOTUS used reason, public policy and precedence to decide those cases. Did they use some other criteria pray tell?
Why not crew served weapons and rocket launchers? What is your constitutional basis for that? They are arms? If you ban those why can't you ban handguns. Are you using those inferior laws again? It makes more sense I think to include them if you are using the militia argument of the 2A since they ARE carried by the individual soldier.
You see, you too are drawing a line on the types of arms protected, based on what? The constitution? Please explain.
Glad to see you’ve reconsidered.
I treat the COTUS as a document that means what it says. Only when there is ambiguity in the text does faithful interpretation of any document seek other sources to clarify that text. Simple failure to agree that the text is correct does not introduce an ambiguity that would allow clear meaning to be disregarded.
Yet, even in the face of clear COTUS text, you are unwilling to allow the law to be controlled by the COTUS, which you believe is not controlling or superior. According to your implicit analysis, the terms of the COTUS aren’t relevant to determining the constitutionality of a law.
This conflates several different issues. One issue is whether the SCOTUS is the superior constitutional court. It clearly is. If the SCOTUS decides that 2+2=orange, that is a correct statement of law no matter how badly reasoned. As the aphorism goes, the SCOTUS is correct because it is supreme, not supreme because it is correct.
Another issue you raise is the strawman that any decision of the SCOTUS would only point to a specific clause and proclaim "There it is!". No one argued or implied that. The SCOTUS has decided that the state may not surveil your home with heat detection equipment in the absence of a warrant, even though there is no prohibition against heat sensing equipment in the COTUS. Was a new right manufactured from whole cloth? Clearly not. The Court found that the heat sensing gizmo allowed a search and that such a search in the absence of a warrant violated the 4th Am prohibition against unreasonable search and seizure.
Similarly, a sound constitutional analysis would conclude that arms protected for individual military service will remain protected even as those arms change from muzzleloader to breachloader to bolt action to semi-auto to fully auto and selective fire.
The next issue is whether the SCOTUS always depends on sound reasoning, which it clearly does not. The examples you choose are telling. Roe is taught, even by law professors very supportive of abortion rights, as a mess of unworkable constitutional law. Dred Scott is another conspicuous example.
Now, if you would like to support the kind of poorly reasoned constitutional change from the bench represented by Roe, that is certainly an option. However, it should not be an option to ignore whether that option is actually supported by sound constitutional analysis.
Because crew served weapons aren’t equipment a normally provisioned soldier would ordinarily be expected to carry.
The practice at the time of ratification. Artillery pieces and ships are also arms, but there is no record of men being required to appear for militia duty provisioned with either.
The constitutional basis involved is that Congress could not infringe the right to retain such arms as a normally provisioned individual soldier would carry. The same principle is applied whether the year is 1791, 1891 or 2008.
If a crew served missile launcher could be banned, why can’t an individually carried arm frequently issued to soldiers be banned? Because there is no experience of 2d Am application to crew served weapons.
Clearly not.
If I am using the militia argument? By militia argument, you mean the text of the 2d Am? I think it makes more sense to include artillery pieces and crew served weapons that were never the duty of individual militia members to provide only if the analysis is obstinately ahistorical.
See above. Not all line drawing is created equal. The distinctions in which I engage above are informed by an understanding of the history, purpose and meaning of the text involved.
The distinction you urge is informed by your fundamental disagreement with the substance, purpose and meaning of the text involved.
Tennessee Gentleman
New member
Just crazy I guess.
It made sense then (like the unorganzied militia) but not now. See, you keep treating constituional interpretation like math where you always get the same answer rather than an art influenced by the times and public policy.
That's not altogether true. Rocket launchers such as (in my day) the LAW was given to just about anybody. They were standard issue. As is the AT-4 today. The SAW which replaced the BAR lineage is carried by one man as well. By the way, where in the 2A does it define an arm as what is carried by the normally provisioned soldier? That is historical criteria YOU are applying. Where is your basis for that? Be careful, going back into history to always decide these things can trip you up. See Dred Scott and Plessy as well. As Mr. Gura said in his arguments
There you go again! The COTUS is full of ambiguity and that is why the SCOTUS must hear cases to resolve them. This is not math where everyone gets the same meaning. I could easiliy define the word "arms" to mean muskets (using your historical example) or nuclear weapons which we call today "arms." It almost seems to be ratherarrogant on your part to say "Well, any intelligent person who reads the COTUS would decide this" Yet many very intelligent people see otherwise. You are biased (as I am) and therefore not subject to get the same answer someone else may get who doesn't like guns.
Ultimately, the point of this thread was whether Mr. Gura responded correctly to the question about banning certain types of weapons. I think he did and if we win this and I think we will in most points, I predict you won't see the NFA overturned in your lifetime and the standard adopted will be "weapons in common use by civilians". You can certainly disagree with it as I do with many other decisions but it will be the law of the land. You may have a point with the logic (I don't think you do) but you won't have the agreement of the courts. Listen to Guntalk radio last week. Interesting comments from Tom's guest about machine guns. Gotta go! Thanks for the dialogue.
Which means it is substantially true.
Which indicates that they aren't crew served, as is the case with an artillery piece.
Already explained in the prior post.
Already explained in the prior post. If you genuinely didn't understand the explanation, I will explain in greater detail.
I am not applying criteria; I am applying context to resolve the ambiguity you raised. See the difference?
Except that I never said that. If you argue matters no one raised, either you didn't understand that the point wasn't raised, or you are consciously seeking the refuge of the strawman. Which is it?
This isn't a matter of intelligence; it is a matter of fidelity to text, and accepted principles of construction. It is not a legitimate principle of construction to change the meaning of a law because you don't like guns or a citizen militia gives you the willies.
Similarly, your "feelings" don't render the language of the amendment ambiguous.
You may think that the unorganised militia doesn't make sense, but that is not the same as providing any rationale worthy of the word that would make it unconstitutional. See the difference?
Our feelings on the topic are not relevant.
I have already defended Gura's response as correct when viewed in the context of his duties to his client and the goal of this case. That is not what we are discussing. If you prefer to retreat from the issue of whether you have a coherent rationale for your position (not Gura's), that's fine too.
EDIT - Let me see if I can distill this.
Thinking it is a bad idea to restrict the Congress from infringing the right to keep and bear arms is not a rational constitutional theory for concluding that the 2d Am does not restrict the Congress from infringing that right.